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David Link On The Gay Marriage Ruling

Many are celebrating last week's decision by the California Supreme Court to legalize gay marriage in the state; others are bracing for a referendum battle; and some, cooped up in campaign offices, are trying to figure out how best to play it. So, in an effort to see the ruling from as many perspectives as possible, we've enlisted a few friends of the magazine to offer their thoughts. Here's David Link, a writer and attorney who has been working on gay rights in California since 1984

The California Supreme Court decision in the marriage cases will be used for wildly different purposes in the days to come--but that will be a testament only to the advanced art of political caricature, and shouldn't reflect on the merits of the opinion. Don't rely on the rhetoric. Read it for yourself.

As far as I'm concerned, Chief Justice Ron George, a Republican, has written a fine opinion, and does the best job yet of any heterosexual judge who's found him or herself in the unenviable position of having to explain why lesbians and gay men are right when they say they see a disconnect between the constitutional provisions guaranteeing them equal protection of the law and the marriage statutes that don't look like they live up to that promise.

But in California, the gears of the Initiative Industrial Complex (in Peter Schrag's fine phrase) are already grinding, with a proposal to amend California's constitution awaiting signature verification, and widely expected to qualify for the November ballot. The initiative, offered up by a nebulous group whose only public presence is a put into the state constitution the same words the voters approved eight years ago in Proposition 22: "Only marriage between a man and a woman is valid or recognized in California." Prop. 22 was a statutory initiative, and under California law is treated like any statute passed by the legislature, which means it is subject to review under the broad protections in the state constitution. The Court overturned both Prop. 22 and the legislature's own definition of "marriage" in the ruling, because both exclude same-sex couples explicitly, and thus violate the equal protection rights of lesbians and gay men. Putting the Prop. 22 language into the Constitution would, in theory, insulate it from constitutional review because it would, itself, become a constitutional precept.

The initiative's proponents have high hopes, and almost reflexively intone that Proposition 22 got 61.4% of the vote in 2000. But much has changed since then. California has eight years of experience with state recognized domestic partners now. In that time, we've also been through Brokeback Mountain, Rosie and Ellen, the rise and fall of Will and Grace, Mary Cheney, metrosexuals, gay weddings in Massachusetts, and San Francisco's own 2004 Summer of Love.

California voters are now almost evenly split when asked a binary question of support or opposition to same-sex marriage: 43% support and 45% oppose. More importantly, California pollsters have been asking whether voters support full marriage rights, no rights at all, or continued domestic partnership. Voters divide almost equally into thirds when the question is asked this way.

With those numbers in mind, the outcome of the initiative battle will almost certainly come down to how its language is understood. Look at the exact wording again: "Only marriage between a man and a woman is valid or recognized in California." This may be read as permitting legal validity and recognition "only" to marriages (and not to any similar relationship), or it may be read as permitting legal validity and recognition to "marriage between a man and a woman," providing some leeway for domestic partnerships.

If the constitutional initiative will only preclude same-sex couples from marrying, but still recognize their domestic partnerships, it may be able to muster its majority by drawing in some of the anti-marriage voters in that moderate middle third. However, if the language will exclude same-sex couples from any constitutional protection for their relationships--marriage, domestic partnership, or anything else--the initiative's chances will not only be slim; they will be near fatal. No state has ever adopted legal protections for same-sex couples and then taken them away. The effect of this initiative would be to nullify the relationships of nearly 50,000 couples already registered as domestic partners.

In 2000, the proponents of Prop. 22 strategically framed it as being only about marriage. Gay rights advocates raised the question of the proposal's effect on domestic partnership repeatedly, but it received no traction in the press, which was mesmerized by the narrower focus on marriage. It was only after the initiative was passed that its proponents filed a lawsuit to challenge domestic partnership as violative of the initiative.

The language's ambiguity cannot escape notice during this election. Domestic partnership is a compromise nearly all Californians are now familiar with; some jurisdictions in the state have legally recognized domestic partnerships for over two decades. If the initiative's proponents do not intend to void recognition of those relationships, it is fair to have them say so, not only on the record, but in the official ballot statements which serve, in California, as the definitive understanding of what the voters are voting for.

Right now, mentions domestic partnership on its website as being "despite the will of the voters." This is a candid appeal to the 1/3 of California voters who oppose any legal rights for same-sex couples--the ones who believe they are "protecting" marriage. And that is why it will be surprising if the proponents continue their candor. This is not the kind of argument that can win over that middle group of voters who believe that fairness obligates the state to provide some recognition to same-sex couples.

Finely developed political minds can and do find ways to appeal simultaneously to groups ideologically opposed to one another. But the primary way of doing that is to simply avoid the conflict. That worked once in California. It's going to be much harder this time.

--David Link